Johnson v. Scott et al

Filing 34

ORDER granting 27 Defendants' Motion to Compel; denying 32 Defendants' Motion for Leave to File Response. See Order for details. Signed by Magistrate Judge Carol Mirando on 9/2/2014.(ALB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ADAM J. JOHNSON,
Plaintiff,
v.

Case No: 2:13-cv-500-FtM-38CM

MIKE SCOTT, THOMAS W. COLE
and UNKNOWN SHERIFF’S
DEPUTY(S),
Defendants.
ORDER
Before the Court is Defendants’ Motion to Compel and Memorandum of Law
(“Motion to Compel”) (Doc. 27), filed on June 30, 2014. No response to the Motion to
Compel was filed by Plaintiff, and the time for doing so has expired.

Upon

consideration, the Motion to Compel is due to be granted.
I.

Background
On November 12, 2013, Plaintiff filed an Amended Complaint (Doc. 16)

alleging that Defendants violated Plaintiff’s civil rights under 42 U.S.C. § 1983 and
asserting additional claims for false imprisonment and negligence arising from
Plaintiff’s October 29, 2009 arrest. Plaintiff contends that, as the result of his arrest,
he suffered:
shame, embarrassment, mortification and disgrace, great
mental anguish including depression, anxiety, fear, and
loss of capacity for the enjoyment of life, medical expenses,
past and future lost wages and the violation of his due

process rights, civil rights, privacy right[s], and other
physical and mental injuries . . . .
Doc. 16 at 8, 10-11, 16, 19, 25, 28 (Counts I, II, IV, V, VII and VIII). Plaintiff also
claims that he suffered:
bodily injury and resulting pain and suffering, permanent
disability, disfigurement, mental anguish, loss of the
capacity for the enjoyment of life, expense of
hospitalization, medical care, nursing care and treatment,
loss of earnings, loss of ability to earn money, and
aggravation of a previously existing condition.

Id. at 12, 20, 29 (Counts III, VI and IX).
Defendants assert, inter alia, that probable cause or arguable probable cause
existed for Plaintiff’s arrest, they are entitled to qualified and sovereign immunity
and Plaintiff failed to act reasonably in mitigating his damages. Doc. 17 at 8. On
February 25, 2014, Plaintiff filed a Notice of Waiver of Personal Injury Claims
(“Waiver”) (Doc. 25), stating that he intended to waive his claims for personal injury
but that “all other forms of damages and prayers for relief, stand.” Doc. 25 at 1.
During the course of discovery in this matter, Defendants served
interrogatories combined with requests for admission and requests for production
(Doc. 27-1). Defendants filed the Motion to Compel on June 30, 2014, requesting
that the Court compel better answers to Interrogatory Number 24 and Request to
Produce Number 26.1 Plaintiff did not respond to the Motion to Compel. Instead,
on July 2, 2014, Plaintiff filed a motion for extension of the time for disclosure of
expert witnesses (Doc. 28), which was granted by the Court on July 9, 2014 (Doc. 29).

1

Discussed more fully in section II, infra.

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Plaintiff also filed a Notice of Withdraw [sic] of the Waiver of Mental and Emotional
Injury/Damage Claims (“Notice of Withdrawal”) (Doc. 30) on July 22, 2014. In his
Notice of Withdrawal, Plaintiff indicated that he previously waived his personal
injury claims “not wanting to go through the discovery process related to his past
mental and emotional problems and not have these issues litigated,” but because
Defendants explored those areas during Plaintiff’s deposition, Plaintiff withdrew his
waiver. Doc. 30 at 1. He further explained:
Since the Defendants insist on making these damages an
issue in the instant action and conducting discovery related
thereof, the Plaintiff withdraws his waiver of damages
related to same and demands judgment related to the
same, if awarded by the jury.

Id.
Upon review of Plaintiff’s Notice of Withdrawal, it was unclear to the Court
whether Plaintiff maintained his objections to the discovery requests or intended to
produce the requested documents and information. Because Plaintiff had not filed
a response to Defendants’ Motion to Compel, on August 5, 2014 the Court directed
Plaintiff to file a response on or before August 11, 2014 and clarify whether he
maintained his objections in light of his withdrawal of the waiver.

Doc. 31.

Plaintiff failed to respond to the Court’s Order.2 Thus, the Court will rule on the

2

On August 12, 2014, Defendants filed a Motion for Leave to File Response (Doc. 32),
requesting to address the issues raised by Court’s August 5 Order. Because the Court will
grant Defendants’ Motion to Compel, further response from Defendants is not warranted at
this time. Accordingly, Defendants’ Motion for Leave to File Response will be denied. The
Court notes that discovery in this matter does not close until October 2, 2014. In the event
that outstanding discovery disputes remain, as Defendants suggest in their motion for leave
to respond, Defendants may file appropriate motions with the Court after meeting and
conferring with opposing counsel in good faith, as required by Local Rule 3.01(g).

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Motion to Compel without the benefit of a response.
II.

Discussion
Defendants request that the Court compel better answers to Interrogatory

Number 24 and Request to Produce Number 26, to which Plaintiff objected on
relevance grounds in light of his waiver of personal injury claims.

Specifically,

Interrogatory Number 24 states:
List every mental health professional you have visited in
the last ten years, along with the contact information for
each mental health professional.
Doc. 27-1 at 10. Request to Produce Number 26 states:
Produce copies of any and all medical, hospital, or doctor
records and bills, including bills for prescriptions, incurred
by you for treatment of any injuries, physical or
psychological, allegedly suffered as a result of the incidents
described in your Amended Complaint.
Doc. 27-1 at 11. Plaintiff responded to both Numbers 24 and 26 as follows:
Response: Objection. Relevance, the Plaintiff has waived
all claims in personal physical injury.
Doc. 27-2 at 6, 7. As noted by Defendants, in Plaintiff’s response to Interrogatory
Number 5, Plaintiff claimed to have suffered “emotional damages and depression” as
a result of his being incarcerated after his arrest.3 Doc. 27-2 at 2. Defendants also
represent that, following Plaintiff’s June 9, 2014 deposition during which he testified

3

Plaintiff signed his notarized responses to the interrogatories and requests for
production on February 22, 2014. See Doc. 27-2 at 8. The Certificate of Service signed by
Plaintiff’s counsel and attached to the responses states that they were served on opposing
counsel on February 25, 2014, the same day that Plaintiff filed his Notice of Waiver of
Personal Injury Claims (Doc. 25). See Doc. 27-2 at 9.

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“regarding his extensive history of mental health treatment,” counsel for Plaintiff
agreed to respond to the requests, but as of the date the Motion to Compel was filed
Plaintiff had not done so. Doc. 27 at 3.
“‘The discovery process is designed to fully inform the parties of the relevant
facts involved in their case.’” United States ex rel. Baklid-Kunz v. Halifax Hosp.

Med. Ctr., No. 6:09-cv-1002-Orl-31TBS, 2012 WL 3537070, at *3 (M.D. Fla. Aug. 14,
2012) (quoting U.S. v. Pepper’s Steel & Alloys, Inc., 132 F.R.D. 695, 698 (S.D. Fla.
1990)). Pursuant to Rule 26(b), Federal Rules of Civil Procedure, “[p]arties may
obtain discovery regarding any nonprivileged matter that is relevant to any party’s
claim or defense – including the existence, description, nature, custody, condition,
and location of any documents or other tangible things and the identity and location
of persons who know of any discoverable matter.”

Fed. R. Civ. P. 26(b)(1).

Information is relevant if it “appears reasonably calculated to lead to the discovery of
admissible evidence.”

Id.

District courts have broad discretion in managing

pretrial discovery matters, Perez v. Miami-Dade Cnty., 297 F.3d 1255, 1263 (11th
Cir. 2002), and whether to grant a motion to compel is within the Court’s discretion.

Commercial Union Ins. Co. v. Westrope, 730 F.2d 729, 731 (11th Cir. 1984).
In a case similar to the one under review, the court granted a motion to compel
production of the plaintiff’s mental health, drug and/or alcohol treatment and medical
records where the plaintiff’s claims put his mental and physical health at issue.

Walker v. City of Orlando, No. 6:07-cv-651-Orl-19DAB, 2007 WL 3407409 (M.D. Fla.
Nov. 13, 2007). The plaintiff in that case also alleged civil rights and state law

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violations stemming from his arrest, specifically, the use of excessive force by an
individual law enforcement officer and that the City of Orlando “failed to properly
train the officers and had a custom or policy allowing the use of excessive force.”4 Id.
at *1. The plaintiff there sought claims for bodily injuries, pain and suffering and
mental anguish due to the circumstances surrounding his arrest. In granting the
motion to compel, the court stated:
Plaintiff’s claims for damages for “mental anguish,” as pled
in the Complaint, have placed his mental health in issue.
Therefore, Defendant is entitled to discover, within reason,
the state of Plaintiff’s mental health . . . .

Id. That court also noted that “[c]ourts considering the issue have generally found
that the identities of health providers, the dates of treatment, and the nature of the
treatment are relevant to claims for emotional distress damages.” Id. (quotation
marks omitted).
Here, Plaintiff has asserted claims both for physical and mental injuries,
including mental anguish, depression, anxiety and fear. He has placed his mental
health at issue.

The Court therefore finds that the documents and information

sought in the Motion to Compel are relevant to the claims and defenses raised in this
action, and thus are discoverable.

Moreover, since objecting to Defendants’

Interrogatory and Request to Produce on the grounds that the information is

4

Although Plaintiff here does not raise excessive force claims, he alleges false arrest
by the individual officer and that the Lee County Sheriff’s Office has a “long standing de facto
policy” of making arrests without proper investigation and/or obtaining arrest warrants
without sufficient probable cause and not supervising or regulating its officers’ criminal
investigations. See, e.g., Doc. 16 at 3-4.

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irrelevant in light of his waiver of personal injury claims, Plaintiff has withdrawn
that waiver. Plaintiff’s objection is overruled, and he is therefore ordered to identify
all information requested by Interrogatory Number 245 and produce all documents
requested by Request to Produce Number 26.
ACCORDINGLY, it is hereby
ORDERED:
1.
GRANTED.

Defendants’ Motion to Compel and Memorandum of Law (Doc. 27) is
Plaintiff shall provide the information requested by Interrogatory

5

Plaintiff’s sole objection to Interrogatory Number 24 is that the information sought
is irrelevant in light of Plaintiff’s waiver of personal injury claims. See Doc. 27-2 at 6. The
Federal Rules of Civil Procedure make it clear that “[t]he grounds for objecting to an
interrogatory must be stated with specificity. Any ground not stated in a timely objection is
waived unless the court, for good cause, excuses the failure.” Fed. R. Civ. P. 33(b)(4). “The
party resisting discovery carries the burden to show specifically how the objected-to request
is unreasonable or otherwise unduly burdensome.” Gonzalez v. ETourandTravel, Inc., No.
6:13-cv-827-Orl-36TBS, 2014 WL 1250034, at *2 (M.D. Fla. Mar. 26, 2014). Although Rule
33(b)(4) allows the Court to excuse a party’s failure to timely file objections upon a showing
of good cause, that Rule does not provide the Court with the discretion to excuse a party’s
failure to raise a particular objection at all. Accordingly, because Plaintiff did not object to
the scope of Interrogatory Number 24, he has waived any such objection.
Even assuming arguendo that Plaintiff had objected to the scope, the objection would
be overruled. Here, Plaintiff alleges damages arising out of his arrest on October 29, 2009,
see Doc. 16 at 3, and Defendants served their discovery requests on January 31, 2014.
Interrogatory Number 24 therefore seeks information for approximately five years before and
after Plaintiff’s arrest, a time period which, under the facts of this case, does not appear to
be unreasonable. See, e.g., Collins v. Marriott Int’l, Inc., No. 09-22423-CIV, 2010 WL
4514200, at *1, *2 (S.D. Fla. Nov. 2, 2010) (court ordered production of information as to
decedent’s mental health treatment and providers for five years preceding his death); Walker,
2007 WL 3407409, at *1 (defendant entitled to discover “the state of Plaintiff’s mental health”
for about two years after events alleged in the complaint); Zaffis v. City of Altamonte Springs,
No. 6:06-cv-385-Orl-31DAB, 2007 WL 1796255 (M.D. Fla. June 20, 2007) (defendants entitled
to plaintiff’s mental health records dating back nearly eighteen years); White v. De La Osa,
No. 07-23381-CIV, 2011 WL 5873036, at *5 (S.D. Fla. Nov. 22, 2011) (defendants entitled to
know whether plaintiff ever received mental health treatment).

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Number 24 and Request to Produce Number 26 within fourteen (14) days of the date
of this Order. The parties are encouraged to resolve any concerns over privacy or
confidentiality issues regarding the information or records to be produced by
stipulation among the parties without further Court intervention.
2.

Defendants’ Motion for Leave to File Response (Doc. 32) is DENIED.

DONE and ORDERED in Fort Myers, Florida on this 2nd day of September,
2014.

Copies:
Counsel of record

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